Kochenov and Pech on Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

Introduction

The common fundamental values the European Union (EU, the Union) is built on are found in article 2 TEU, which include the rule of law. An increasing number of internal threats and/or breaches of the Union values, i.e. ‘rule of law crises’, has lately occurred. Member States (MSs) tend to undermine the rule of law and the Union’s legal framework is considered insufficient to address the breaches. Both the Commission and the European Council (the Council) have, therefore, respectively presented new proposals aiming to address such situations. The authors Dimitry Kochenov, professor of EU Constitutional Law, and Laurent Pech, professor of EU Public Law, provide a critical review of these new rules, followed by recommendations in the last issue of European Constitutional Law Review (Volume 11, Issue 03, December 2015, pp 512-540). In essence, the authors are optimistic of the Commission’s new framework, and even though its efficiency is questioned, they consider it a better solution than the Council’s response.

Legal issues

Pursuant to article 258 TFEU, the Commission can initiate infringements actions if MSs fail to comply with their EU obligations. A specific violation of EU law is required for the Commission to start infringement actions. Article 2 TEU lacks justiciability and cannot itself pose as a legal basis in legal proceedings, but needs to be taken in conjunction with article 7 TEU, the “nuclear option”. If applied, the result of the nuclear option is the suspension of certain Treaty rights, such as voting in the Council. Article 7 TEU provides that the values found in article 2 TEU are to be protected. Accordingly, sanctions can be adopted against a MS when/where there is a clear risk for a serious breach, and when the values are breached in a serious and persistent manner. The procedural requirements of article 7 TEU somewhat differ between the two situations, but one common feature is that there is a high threshold making the article quite impossible to apply. This is easily demonstrated by the fact that the article has never been used. The current legal framework within the Union lacks adequate mechanisms to address domestic systemic threats and violations of the rule of law by the MSs. It is therefore important to develop adequate tools so the current gap between article 258 TFEU and article 7 TEU is filled.

The Commission’s new framework

The Commission wants to create an early warning tool in order to prevent threats to the rule of law by entering into discussion with the MSs (COM(2014)158). This tool is supposedly preceding the “nuclear option” and meant to be used only for “systemic” threats. This pre-article 7 procedure is divided into three parts. The first is an assessment of a possible systemic threat to the rule of law in a MS. If so, a “rule of law opinion” is sent to that MS. If the Government takes no sufficient actions against the threat, the procedure will move into its second stage. A recommendation that may include specific instructions and a deadline in order to stop the threat to the rule of law is then given to the Government. Lastly, at the follow-up stage, the Commission checks if the MS follows this recommendation. If not, it has the option to trigger the nuclear option.

Institutional confrontation

In the opinion of the authors, the weakest feature of the Commission’s proposal is its potential inefficiency. First of all, the framework does not clearly define its triggering criteria, especially “systemic threat”, and the Commission does not share its triggering power with MSs or other institutions. Further, the authors are critical of the confidential nature of the dialogue in question since it will prevent a “name-and-shame” environment. Also, it relies on a dialogue between a MS and the Commission. This can be problematic if a challenging attitude of the MSs towards EU values is combined with the non-binding characteristic of the recommendations. Finally, the new procedure could end up as inefficient as Article 7 TEU.

The authors are, however, even more critical towards both the Council’s attempt to stop the Commission’s proposal and its introduction of an annual dialogue. This annual dialogue is described as a “poorly disguised attempt to pre-empt any activation” of the new pre-Article 7 procedure. Further, the Council’s legal service has expressed its opposition to the Commission’s proposal, alleging an unlawful power-grab by the Commission. This action by the Council is not surprising according to the authors, since the power of scrutiny outside EU law areas is a sensitive issue for some Governments.

The authors question the Council’s solution on two main points. Firstly, it is a soft mechanism, and as such it has often been criticised for not being effective. Secondly, the authors point out that it calls for an evidence-based approach, but an evidence-free approach would be absurd and not supported anyway, making the reasoning irrelevant. Finally, the authors give two potential explanations for the Council’s annual dialogue: either the Council is in denial of how the rule of law situations are in some MSs, or it  was not able to conclude another agreement due to the lack of cooperation of some MSs.

The authors emphasized several positive aspects of the Commission’s new framework. For example, they considered that the Commission was smart to build further on already existing functions, so as not to require treaty amendments. It is also argued that the Commission already implicitly had the competence stated in the framework. Further, the facts that the pre-Article 7 procedure can work alongside the traditional infringement proceedings and that the Commission is ready to consult expert third parties are both embraced. In conclusion, the authors stated that, even though the Commission framework is not without faults, it is still preferable to the Council’s solution.

Suggestions by Kochenov and Pech

Kochenov and Pech suggest that the European Parliament and the Commission cooperate to enable progress, not only within the rule of law area, and that the weak points of the Commission’s proposal should be fixed in order to enhance its efficiency. Further, the authors support the idea of a European Scoreboard for Democracy and Rule of Law and Fundamental Rights, a monitoring tool that would allow for transparency and based on set criteria. Also, several Treaty amendments are put forward by the authors, for example a lower voting threshold for article 7 TEU combined with varying and clear penalties.

Comments

The European Parliament (EP) in its 5.4.2016 draft report seems to be optimistic about the Commission’s proposal. Knowing that the transfer of a new competence to the EU is followed by the mobilization of new funds, the EP seems to appreciate that the Commission has built the proposal on its already existing competences, therefore covered by the existing budgetary allocations. Yet, the EP is critical over the appropriation of pre-Article 7´s triggering power. It requests the conclusion of a Pact that provides cooperation between MSs and the Union´s institutions in the application of Article 7 TEU. The EP adds that the Pact´s preventive and corrective mechanisms shall apply to the MSs as well as to the three main institutions of the Union.

As it has been pointed out in an Editorial of the Common Market Law Review (pages 627-8), the common EU values, inter alia the rule of law, must be protected, and not even democracy could be used to weaken them. The criticism of the Meijers Committee (a standing committee of experts on international immigration, refugee and criminal law) towards the Commission’s dialogue approach (Note on the Commission Communication, p.2) in consort with the inefficiency of dialogues with non-EU countries (EP Resolution on the Annual Report on Human Rights in the World 2009, para. 157) further weakens the proposals.

It is truly questionable why both institutions have chosen a dialogue approach to “solve” the problem. The end result is that the nuclear option will be relied on to actually make a difference. Thus, so far has the provision never been used, due to a high voting threshold, even though serious violations of EU values are of legitimate concern for the whole Union. The authors suggested a lower threshold to apply to the article 7 procedure, as also advocated by several scholars. Article 7 has been called an ‘empty gesture’. However, its scope goes beyond EU law. A threshold lowering could lead to an actual application of the article in question, but it may also infringe national sovereignty more than at the present. As such, it is important to strike a fair balance between the sovereignty of the MSs and the protection of values. Otherwise, the lowering is not a realistic future since the MSs’ unanimity is required to achieve it. Amendment of a treaty is, however, a somewhat difficult procedure and it would probably not be supported by the MSs. Even the EP’s position is clear enough in its draft as it suggests a Treaty amendment of the unanimity requirement in areas relating to respect for and protection and promotion of fundamental rights.

At the end of the day, Kochenov and Pech seem a bit inconsistent. They are critical to one proposal more than the other, even though both proposals are based on the assumption that dialogues can solve the present issues.

Yasmin Semmane, Julia Steen and Anton Öberg

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About eulaworebro

Örebro Universitet (Sweden)
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